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karira

CBI again tries to get exemption from RTI Act

Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?  

46 members have voted

  1. 1. Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?



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karira

As reported on timesnow.tv on 24 June 2011:

http://www.timesnow.tv/Lokpal-under-the-RTI-but-CBI-not-to-be/articleshow/4376803.cms

 

Lokpal under the RTI, but CBI not to be?

 

The government may have strenghtened the wall of secrecy around the CBI by exempting it from the RTI, but the chorus against that move is only growing. A former CBI chief has come out in support of allowing citizens access into CBI's functioning to make the agency more transparent.

 

The chorus against RTI exemption to CBI is growing louder. The latest voice of dissent is the former CBI chief Uma Shankar Mishra. The Former Director of the CBI said, "There should not be a total disconnect between a common citizen and the CBI. And to the extent possible CBI should be under the RTI Act except sensitive cases..sensitive matters which relate to investigation of the cases."

 

The call for transparency in the CBI's functioning comes on the back of the agency looking into several high profile cases of corruption like 2G and CWG scam.

 

Speaking to reporters on the issue, Kiren Bedi said, "If Lokpal is going to function transparently how can the CBI be covered under the RTI. I think the government is contradicting itself on this count."

 

The govt is citing intelligence and security issues as reasons to exempt CBI from the RTI. It's an agrument that's running thin.

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karira

Views of Mr B R lall, former Jt. Director of CBI

 

 

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karira

An opinion by Mukul Mudgal in indianexpress.com on 28 June 2011:

http://www.indianexpress.com/news/sunlight-on-the-cbi/809613/0

 

Sunlight on the CBI

 

This month, the Second Schedule of the RTI Act was amended to exclude the Central Bureau of Investigation, National Investigation Agency and the National Intelligence Grid from the scope of the legislation.

The exemption of the CBI from queries under the RTI Act has produced predictably diverse reactions. The government stand is based upon the sanctity of intelligence and security concerns whereas civil society has opposed it on the grounds of avoidance of transparency brought about by the RTI Act.

 

Undoubtedly, in recent times, the RTI has brought about a radical transformation in the awareness about the rights of a citizen and manner of governance. A query about civil maladministration or negligence has generally had an immediate effect and in many cases the grievance raised has been redressed even before the query is answered. By far this is the most citizen-friendly legislation post-Independence. The citizenry has benefited immensely from finding out, say, that a road that was supposed to have been made with large public funding has remained on paper. Citizens, particularly those lacking resources and influence, have acquired knowledge about their grievances and consequently have been able to assert their rights, armed with the knowledge derived from RTI queries. The authorities have also become aware of the potency of such queries and have become more conscious of their responsibilities.

 

A conscientious government servant who would like to take correct decisions is also thus armed with a defence of disclosure to resist uncalled for pressures.

 

Several unsuccessful attempts have also been made to dilute the potency of the RTI at the behest of the establishment.

 

Consequently, any dilution of the act in respect of the CBI is bound to raise legitimate concerns. One of the major causes for such apprehension is the likely snowballing effect of such legislation on other limbs of the government that may now be emboldened to wrongly claim such exemption under the cover of being connected to security and intelligence concerns.

 

However, the stance of the CBI also has to be looked at. Conceivably there may be certain investigations that reveal information which may have a bearing on national security or disclose sensitive information gathered during investigation. Certain information obtained during the course of an investigation may affect the outcome and the premature disclosure of such information may alert the perpetrator.

 

The solution perhaps lies in taking a middle path provided by the proviso to Section 24 of the RTI Act, which states that any information relating to allegations of corruption and violation of human rights is not excluded from disclosure. The terms corruption and human rights violations are comprehensive enough to include approximately all the issues for which the public would like the CBI to be answerable. Hence information concerning national security and regarding investigations at the pre-charge stage may be denied under the parameters of Section 24 of the RTI Act, while any information regarding allegations of corruption in matters like administration, personnel, budget, etc cannot be denied as per the proviso to Section 24.

 

Section 24 of the act provides exemption to intelligence and security organisations under the Central government. However, the exempted authorities are not specified in the act itself but are provided in the Second Schedule. The act also permits the government to add organisations by notification in the Second Schedule. In 2005, when the act was brought into force, the schedule to the act had 18 organisations, including the Central Reserve Police Force; Special Branch (CID), Andaman and Nicobar; the Crime Branch-CID-CB, Dadra and Nagar Haveli; and Special Branch, Lakshadweep Police. Thereafter the schedule was expanded from time to time to include in all 25 organisations such as the Border Road Development Board.

 

It would have been much better if at the time the act was framed all the organisations sought to be covered by the exemption under Section 24 were specified in the act itself rather than in the Second Schedule. This would have ensured that any addition to exempted organisations will happen only by an amendment, which could have been deliberated upon by Parliament. The route of exemption by virtue of addition to the schedule by a notification only requires an executive action to be placed before Parliament. Thus, if an organisation has to be added so as to justify its exemption, the route of amendment to the act rather than addition to the schedule provides a more transparent route.

 

It is also necessary to delineate the powers under the proviso to Section 24 which narrows the scope of exemption by permitting information as to corruption and human rights violation not to be out of the reach of public queries. It would be far better to frame rules in respect of the information required to be furnished relating to corruption and human rights violations in exempted security organisations so as not to leave any scope for arbitrary denials in the absence of any statutory guidelines.

 

In any case, even such information concerning national security and the pre-charge stage on demand has to be shown to the information commissioners and eventually to the court concerned, if necessary, to satisfy the relevant body whether the disclosure is warranted, and cannot be left to the discretion of the authority claiming such privilege. The law in respect of claim of privilege by the government is well-settled and must be followed. The court may uphold the claim of privilege and denial of information in the interest of national security in case it is satisfied that the claim is genuine. However, the court’s scrutiny under Articles 32 and 226 of the Constitution in examining such claims is not barred.

 

Consequently it may be that certain categories of information should not be disclosed, subject of course to the court’s scrutiny.

 

Information as to why a particular case was closed, why an officer investigating a sensitive case was changed and why a case is being prolonged ought not to be kept confidential and would certainly fall within the scope of what may be perceived to be a possible case of corruption. In fact, this would enable the CBI to avoid pressure and investigate independently.

 

The writer is a former chief justice of the high court of Punjab & Haryana

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karira

As reported by PTI in zeenews.india.com on 29 June 2011:

http://zeenews.india.com/news/nation/plea-in-hc-against-cbi-nia-out-of-rti-ambit_716261.html

 

Plea in HC against CBI, NIA out of RTI ambit

 

New Delhi: A plea challenging the Centre's decision exempting CBI, NIA and NATGRID from the purview of the Right To Information (RTI) Act has been filed before the Delhi High Court.

 

Filing the petition, Sitab Ali Chaudhary, a practicing advocate, sought a direction to stay the June 9 decision of the Union Cabinet exempting these sensitive government departments from divulging their information under the 2005 transparency law.

 

"The Cabinet decision on June 9, 2011 to exempt the Central Bureau of Investigation (CBI), the National Investigation Agency (NIA) and the National Intelligence Grid (NATGRID) from the purview of RTI Act i.e. giving information on demand under the 2005 Act, is unconstitutional and ultra vires," Chaudhary said in Public Interest Litigation (PIL).

 

Terming the decision as "illegal, arbitrary, malafide, unlawful and uncalled for," Chaudhary said it will hinder the country's progress in an era of transparency.

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karira

Today (01 July 2011), CIC has passed an order while hearing a Complaint from an accused in the Ghaziabad PF scam.

 

In a very long order, CIC has ruled that:

 

1. The Govt. order on exemption of CBI from RTI is not in consonance with the basic provisions of the RTI Act

2. CIC can hear direct Complaints and there is no need to exhaust 19(1) before approaching the commission

3. The gazette notification on CBIs exemption has only a prospective effect - ie cannot be applied to applications/appeals/complaints already in process.

 

Full order is attached to this post.

CIC rules that CBI notification not in consonance with RTI.pdf

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karira

As reported by PTI in hindustantimes.com on 01 July 2011:

http://www.hindustantimes.com/CIC-raps-govt-for-bringing-CBI-under-exemption-list-of-RTI/Article1-716199.aspx

 

CIC raps govt for bringing CBI under exemption list of RTI

 

The Central Information Commission on Friday came down heavily on the government for exempting CBI from RTI Act saying it cannot "frustrate" a law made by Parliament by resorting to such "colourable administrative fiat". The exemption is "not in consonance with letter or spirit" of the transparency law, the Commission observed while hearing a petition filed by Justice (retd) RN Mishra, an accused in the PF Scam, who sought information on the case through an RTI application.

 

The information was denied by the CBI saying it has been brought by the government under the list of organisations exempted from making disclosure under transparency law with effect from June 9, 2011.

 

Information Commissioner Shailesh Gandhi said the CBI probes crimes of corruption, economic offences, and "serious and organised crimes other than terrorism".

 

"This Commission rules that the said notification of June 9, 2011 is not in consonance with the letter or spirit of Section 24 of the RTI Act, since it constricts the citizen's fundamental right in a manner not sanctioned by the law," Gandhi said.

 

Gandhi said mandate and functions of the CBI show that it does not appear to fit the description of an "intelligence or security organisation" under Section 24(2) of the RTI Act.

 

"The Government appears to have stretched the interpretation of Section 24(2) of the RTI Act far beyond what Parliament had intended, by including an investigating agency such as CBI within the Second Schedule, which was envisaged exclusively for intelligence or security organisations," he said in the order.

 

He said with unearthing of various scams which are being investigated by CBI, the move would be considered to be a step to avoid the gaze and monitoring of citizens in matters of corruption.

 

In his order, Gandhi directed the CBI to provide information sought by Mishra as the application was filed before the agency was brought under the exemption clause.

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karira

As reported in deccanherald.com on 01 July 2011:

http://www.deccanherald.com/content/173026/cbi-exclusion-rti-act-flayed.html

 

CBI exclusion from RTI Act flayed

 

In a decision that may embarrass an embattled UPA government, the Central Information Commission on Friday held that the Centre’s action in placing the CBI on the list of organisations exempted to provide information under the RTI Act was against the spirit of the Constitution.

 

The CIC order comes within weeks of the Union Government’s controversial notification issued by the Department of Personnel and Training (DoPT) on June 9 which put the CBI in the second schedule of the Right to Information Act 2005. This enabled the CBI exemption available to “security and intelligence” organisations like IB and RAW from the scope of the transparency law.

 

The June order of the government was criticised by various quarters as CBI is already investigating cases relating to Common Wealth Games 2010 and 2G spectrum scam.

 

“This commission rules that the said notification of 9/6/2011 is not in consonance with the letter or spirit of section 24 of the RTI Act, since it constricts the citizen’s fundamental right in a manner not sanctioned by the law,” Information Commissioner Shailesh Gandhi said.

 

The Commission quashed the notification by allowing a complaint filed by Justice (Retired) R N Mishra seeking copy of the FIR and other details relating to Ghaziabad Provident Fund scam case which had put several members of judiciary including the higher judiciary under the scanner for allegedly swindling employees’ money for personal gains.

 

After going through the functioning and mandate of the CBI, the apex panel under the transparency law ruled that CBI is not an “intelligence or security organisation”.

 

“Since no reasons have been advanced, citizens are likely to deduce that the purpose of including CBI in the second schedule was to curb transparency and accountability from the investigations of several corruption cases against high-ranking government officers,” Gandhi said, noting that the CBI was a multi-disciplinary investigating agency.

 

Rejecting the CBI plea, the commission directed the probe agency to provide the details sought by Mishra by July 25.

 

Also the notification issued by DoPT on June 9 would be construed as prospective in nature only without there being any “express stipulation” in it.

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Dr.S.ANANDKUMAR

Recently, we have the news that Government of India has decided to exempt the CBI from RTI Act, 2005. Past Chief Information Commissioner, Shri.Wajahat Habibullah, has written to the Prime Minister against such a decision. One petitioner has filed a case in the High Court of Madras against the decision. Then again, the Central Information Commission also raised objections. In the light of above developments, the members’ views are wanted on the issue whether the Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR.

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ranjan1

Important worth reading points

 

 

There does not appear to be a statutory requirement of filing a

First Appeal and a Complaint may be made directly to the Commission in certain circumstances, as

described above.

 

 

However, on a plain reading of the Notification, it does not appear to have a retrospective effect.

 

By enacting the Notification and bringing CBI within the Second Schedule, the Government appears to have increased the scope of Section 24(2) of the RTI Act,

 

 

 

 

By this method the Government could keep adding organisations to the Second Schedule, which do not meet the express criteria laid down in Section 24(2) of the RTI Act and ultimately render the RTI Act ineffective. The Government cannot frustrate a law made by the Parliament by resorting to such colourable administrative fiat.

 

 

“In a government of responsibility like ours, where all the agents of the

public must be responsible for their conduct, there can be but few secrets. The people of this country

have a right to know every public act, everything that is done in a public way by their public

functionaries.

 

 

Therefore, by enacting the Notification and placing CBI in the Second Schedule, the Government

appears to be claiming absolute secrecy for CBI without the sanction of law

 

 

Furthermore, under Section 4(1)(d) of the RTI Act, it is mandated that every public authority shall

provide reasons for its administrative or quasi judicial decisions to affected persons

 

 

 

It is incumbent on the Government to provide the reasons for constricting the citizen’s

fundamental right to information. In the instant case, the Commission has noted that neither in the

Notification nor on its website or otherwise, the DOPT or the Ministry of Personnel, Public Grievances

and Pensions has provided any reasons for including CBI in the Second Schedule

 

 

 

 

Therefore, the DOPT/ Ministry of Personnel, Public Grievances and

Page 8 of 11 Pensions ought to have communicated the reasons for this sudden decision to include CBI within the

Second Schedule.

 

 

Springing such a Notification to shroud CBI with an armour of opacity without giving any reasons, is

violative of the promise made by the Parliament in Section 4(1)(d) of the RTI Act

 

 

Government officers. In the absence of any reasons, the Government’s move appears to be arbitrary in nature.

 

 

This Commission rules that the said notification of 9/6/2011 is not in consonance with the letter or

spirit of Section 24 of the RTI Act

 

 

Moreover, it is legally established that information sought can be denied to citizens only on the basis

of Sections 8 and 9 of the RTI Act

 

 

Access to information, under Section 3 of the Act, is the rule and exemptions under

Section 8, the exception

CBI_post notification_CIC_SM_C_2011_000117_SG_13230_M_59799.pdf

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karira

As reported by IANS in timesofindia.indiatimes.com on 06 July 2011:

http://timesofindia.indiatimes.com/india/Court-notice-to-government-on-CBI-exemption-from-RTI/articleshow/9123810.cms

 

Court notice to government on CBI exemption from RTI

 

NEW DELHI: The Delhi High Court on Wednesday issued notice to the central government on a public suit filed against the decision to exempt the CBI and the NIA from the purview of the RTI Act, the country's transparency law.

 

A division bench of chief justice Dipak Mishra and justice Sanjeev Khanna issued notice to the central government, the Central Bureau of Investigation (CBI), the National Investigation Agency (NIA), the home and law ministries and the Department of Personnel and Training (DOPT).

 

"We are putting the matter for final disposal. The next date of hearing will be August 10, therefore the reply should be filed within two weeks from today (Wednesday)," the bench said.

 

The petitioners, Ajay Kumar Agarwal and Sitab Ali Chaudhary, had challenged the June 9 government notification exempting the CBI, the NIA and the National Intelligence Grid (Natgrid), a proposed centralised data system for quick access to information on terror suspects, from the purview of the Right to Information (RTI) Act.

 

"Hiding information sought under the RTI Act is unconstitutional," the petition said.

 

"The petition has been filed for the benefit of citizens incapable of accessing the court themselves," Chaudhary said.

 

Earlier this month, the cabinet approved the CBI's request to be exempted from the RTI Act. The move was condemned by various RTI activists.

 

On a similar suit, the Madras High Court has asked both the central government and the CBI to explain the exemption from the RTI.

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karira

From http://www.rediff.com

http://www.rediff.com/news/slide-show/slide-show-1-a-faq-on-cbi-and-the-right-to-information-act/20110707.htm

 

A FAQ on CBI and the Right to Information Act

 

Why did the Centre hastily decide to exempt the CBI from the purview of the Right to Information Act? B Raman addresses some questions about the role of the investigative agency and the government's 'national security concerns'.

 

I have received a number of questions from readers regarding the recent decision of the government to totally exempt the Central Bureau of Investigation from the purview of the Right To Information Act.

 

For the last four years, the CBI had not enjoyed this exemption. This sudden decision of the government to grant a total exemption to the CBI has been justified on grounds of national security. There has been criticism of the government's action from advocates of greater transparency in the functioning of our intelligence and investigation agencies. I have tried to answer some of these questions:

 

Is the CBI a national security organisation like the Intelligence Bureau and the Research & Analysis Wing?

 

No, it is not, but it does play a role in national security to a limited extent. It is essentially an agency for the investigation of criminal cases entrusted to it. These cases fall into two categories:

 

1) Cases of corruption and other common law crimes of a serious nature

 

2) Cases of terrorism and related offences such as the counterfeiting of currency notes.

 

CBI can't be treated on par with IB, R&AW

 

 

After the National Investigation Agency came into existence in 2009, the responsibility for the investigation and prosecution of terrorism-related cases of a specified nature was transferred to it from the CBI. Despite this, the CBI continues to have a responsibility for follow-up action on cases registered before the NIA came into existence.

 

The CBI played an important role in the investigation of the 1993 serial blasts in Mumbai and other major terrorist attacks. It continues to hold the responsibility for the investigation and prosecution of important cases involving mafia groups and their nexus with terror groups.

 

When the NIA gets going completely, the CBI's responsibility for the investigation and prosecution of cases relating to terrorism and mafia activities will be considerably reduced. The agency will focus almost entirely on the investigation of corruption cases and other common law crimes not necessarily having an impact on national security.

 

However, the CBI cannot be treated on par with the IB and the R&AW because it is not a clandestine organisation operating covertly. Whereas the IB and the R&AW are not subject to Parliamentary scrutiny, some aspects of the CBI's work such as its budget are subject to scrutiny by relevant committees of the Parliament such as the Estimates Committee.

 

Thus, to treat the CBI on par with the IB and the R&AW and giving it the benefit of total exemption was unwarranted.

 

What made the government bring the CBI under the totally exempted category?

 

It is difficult to answer this question categorically in the absence of details. RTI advocates should examine whether there is scope for forcing the government to disclose these details which made it reverse its earlier decision of not exempting the CBI.

 

Vague answers such as "national security grounds" should not be accepted. The apparent suddenness and abruptness with which the government took this decision would indicate that the CBI was probably in receipt of a request under the RTI Act for some information which it was not in a position to legitimately deny.

 

The government, therefore, decided that instead of denying the request for the specific information, which could have put it in an embarrassing position, it would totally exempt the CBI. One example of such information that I can think of could be related to the past investigation in the Bofors scam case. There could have been other similar cases.

 

Why is the Bharatiya Janata Party supporting the government's decision to grant total exemption to the CBI?

 

One possibility is that the BJP genuinely feels that since the CBI had in the past investigated terrorism-related cases and now continues to investigate mafia-related cases, it should have the benefit of total exemption.

 

Is granting total exemption to the CBI the only way of preventing disclosure of information related to cases with national security implications such as terrorism, mafia activities, counterfeiting etc?

 

No. Without including the CBI in the list of totally exempted organisations, the government could have suggested to the agency that it take advantage of those provisions in the Act for denying information in cases having a bearing on national security on a case by case basis. The public has the right to a lot of information related to the CBI such as its administration, methods of recruitment and training, budgetary control etc.

 

At the same time, it should not have the right to seek information related to the investigation of on-going cases -- whether of corruption or of other common law crimes or terrorism-related. These two requirements could have been easily met by continuing to keep the CBI in the not-exempted category.

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karira

As reported by Danish Raza in governancenow.com on 11 July 2011:

http://governancenow.com/views/columns/cbi-and-rti-why-vahanvati-wrong

 

CBI and RTI: why Vahanvati is wrong

 

The attorney general's arguments to keep the CBI out of the RTI Act are unreasonable

 

An 11-page note dated May 9, prepared by attorney general Goolam E Vahanvati, has all you want to know about the exemption of the central bureau of investigation (CBI) from the purview of the Right to Information (RTI) Act.

 

CBI had sent its request for exemption from the RTI Act to the Department of personnel and training (DoPT) which forwarded it to the department of legal affairs along with a note dated May 3. The very next day, legal affairs prepared a note and forwarded the matter to Vahanvati for his opinion.

 

Vahanvati’s 11-pager will go down in history as a legally unreasonable document. The irony is that it is coming from the government’s topmost legal advisor.

 

Not only are the attorney general’s arguments weak to say the least, they are also bound to encourage other law enforcement agencies to ask for similar exemptions in future.

 

Let us have a look at the arguments given by the attorney general and the flaws in them.

 

Vahanvati was asked if it was legally feasible to include the CBI in the second section 24 of the RTI Act (the section includes the list of agencies exempted from the Act).

 

He said, yes, CBI should be included in the list of exempted agencies because it is involved in a wide range of cases. “These include cases where the economic security of the nation is at risk…It cannot be disputed that the CBI does intelligence work which is directly related to the security agencies.”

 

Vahanvati goes on to give a list of 10 “important cases having bearing on national security”. These include the Naval war room leak case, Mecca Masjid blast and Rajiv Gandhi’s assassination.

 

What the attorney general did not consider was that he was supposed to give his opinion on the functioning of the CBI in the context of the RTI Act and not the working of the agency in general.

 

A Google search would give us the list of sensitive cases with the CBI. What we do not know and expected the attorney general to tell us is how has the RTI Act (or the availability of information in public domain) might affect the CBI’s investigation in these cases, or in any case for that matter. His remarks are silent on that.

 

Further, if we apply the logic that the agency is involved in “intelligence work which is directly related to the security agencies”, then CBI is not the only agency doing so. Using the same argument, police can also ask for exemption and it should be granted the same.

 

Second query before Vahanvati was if it was practically possible to keep matters pertaining to administration, personnel, accounts/finance, budget and training excluded from such exemption.

 

He said that there should not be any qualification with regards to the exemption. “Offering such exclusion to any agency would make intelligence gathering and intelligence work difficult if not impossible,” he opined.

 

The respected attorney general seems to have ignored the fact that the Act provides enough provisions for not divulging information of sensitive nature. Section 8 says that the public authority can withhold information which can affect the process of investigation or prosecution of offenders. Plus, there is exemption for disclosure of information that would prejudicially affect the security of the state, friendly relations with foreign countries, law and order.

 

One would expect the attorney general to run us through the kind of RTI queries the CBI has received since the enactment of the RTI Act to know whether they pertained to the administration, personnel, accounts/finance, budget or intelligence gathering part of the agency.

 

And what about the cases which have been closed by the agency? Suppose there is case, investigation in which was over 10 years ago. Why should I not have the right to know about its details?

 

Justifying a blanket exemption to the agency without analysing these factors is uncalled for.

 

Lastly, the attorney general was asked “would it be possible to separate within the CBI that part which deals with intelligence collection and notify only this part of the organisation under the second schedule of the RTI Act?”

 

He answered in the negative saying it should not be done for the reason that we are concerned not just with ‘intelligence’ but also with ‘security’ of the State.

 

It is to be noted here that at the time of the enactment of the act, only ‘intelligence’ and ‘security’ organizations were kept out of its purview. The attorney general believes that the CBI, primarily an ‘investigative’ agency fulfills the criteria of being both and hence the exemption.

 

Here, Vahanvati is also undermining the wisdom of the law- makers who fell short of acknowledging the fact that CBI should have been in the list of agencies exempted from the RTI Act.

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Atul Patankar

An article by V. VENKATESAN at frontline.in Jul. 16-29, 2011 issue

 

The Central government exempts the CBI from the Right To Information Act's purview without seeking Parliament's approval.

 

THE Right to Information Act, 2005, originally exempted 18 public authorities under the Central government from disclosure of information. Section 24 of the Act provided this exemption to intelligence and security organisations specified in the Second Schedule of the Act, and permitted the Central government to amend the Schedule, by notification in the Official Gazette, to include new organisations or omit organisations that had been included earlier. The Central government may do so under the Act without even seeking Parliament's sanction for amending the Schedule, even though it is mandatory to place every such notification before each House of Parliament.

 

Last month, RTI activists realised to their dismay that this provision could indeed mean amendment of the Act itself, which might undo the very objectives of the legislation, without Parliament's approval. Rajeev Kapoor, a Joint Secretary in the Ministry of Personnel, Public Grievances and Pensions, issued a notification on June 9, following a decision of the Union Cabinet, amending the Second Schedule to the RTI Act to include three more organisations, thus taking the total number of exempted public authorities to 25. The newly exempted public authorities are the Central Bureau of Investigation (CBI), the National Investigation Agency (NIA) and the National Intelligence Grid.

 

As the veteran RTI activist Subhash Chandra Agrawal pointed out, the notification held an irony of which only the activists were aware. Rajeev Kapoor was a participant in the recently held Shillong RTI convention, which, under National Advisory Council member Aruna Roy as Chairperson, unanimously adopted a resolution to delete altogether the Second Schedule as Section 8 of the RTI Act provided adequate and vast coverage of exemptions from disclosures.

 

Neither the Cabinet nor the Ministry issued a press note explaining the decision. It required an indomitable information seeker, C.J. Karira from Hyderabad, to secure from the Department of Personnel and Training [DoPT] Office, New Delhi, copies of crucial documents concerning this unfair exemption. His perusal of the documents revealed that the Department of Personnel initially opposed the CBI's exemption stating that the CBI did not deal either with intelligence or with security issues, as required under the Act. The documents further revealed that the Law Ministry had suggested a partial exemption for the CBI, stating that the agency should be answerable to queries on subjects such as administration, personnel and budget.

 

The only document that strongly recommended the exemption of the CBI was the 11-page opinion tendered by Attorney-General G.E. Vahanvati to the Law Ministry. Karira, who has acquired a copy of this document from the Department of Personnel files, shared it with Frontline.

 

Broadly, the Department of Legal Affairs of the Law Ministry wanted the Attorney-General to clarify three issues relating to the exemption of the CBI:

 

Would it be legally feasible to include the CBI in the Second Schedule of the RTI Act under the provisions of Section 24 of the Act?

 

If yes, whether the matters pertaining to administration, personnel, accounts/finance/budget and training can be completely separated from the operational issues of the CBI.

 

Whether exempting a part of the CBI dealing with the collection of intelligence from the provisions of the RTI Act is feasible given the structure of the CBI.

 

A-G's argument

 

While answering the first question, the Attorney-General took the view that intelligence-gathering could not be restricted to the phase prior to the happening of an event but should also extend to post-event intelligence gathered, which fell under investigation. He then concurred with the latest note received from the CBI setting out the grounds justifying the inclusion of the CBI in the Second Schedule.

 

According to this note, the CBI had become involved in a wide range of cases, including cases referred at the instance of courts. These included cases where the economic security of the nation was at risk. Here, the note perhaps implied the number of corruption cases being investigated by the CBI, which together could be said to pose a threat to the economic security of the nation.

 

The Attorney-General appears to have understood the term “economic security of the nation” synonymously with the term “security organisation” as used in Section 24 of the Act. Having succeeded in terming the CBI as an agency gathering intelligence post-event, he now needed some justification also to call it a “security organisation”. For this, he relied on an unrelated observation made by Justice Jeevan Reddy of the Supreme Court, while deciding a case in 1994 as part of a nine-judge Bench:

 

“In the modern world, the security of a state is ensured not so much by physical might but by economic strength – at any rate, by economic strength as much as by armed might.” The Attorney-General was clearly stretching his argument to defend the CBI's note.

 

The CBI's note listed some specific cases investigated by the agency that had a bearing on national security: the naval war room leak case, the Barak anti-missile defence system case, the Denel anti-material rifles case, the Mecca Masjid blast case, the Bombay blast case of 1993, the fake passport case, the Assam serial blasts cases, the Andaman arms haul case, the IC-814 hijacking case (Kandahar case), and the Rajiv Gandhi assassination case. The Attorney-General concluded that it could not be disputed that the CBI did intelligence work that was directly related to the security agencies.

 

To establish this link between the CBI and national security, the Attorney-General again relied on an unrelated observation of the Supreme Court while deciding a case in 1985. The court had observed that the security of the state could be affected by state secrets or information relating to defence production or similar matters being passed on to other countries, or by secret links with terrorists.

 

Another observation by a Supreme Court judge, while deciding a case in 1973, had, according to the Attorney-General, much relevance and resonance in 2011.

 

Justice Alagiriswami had stated: “Defence of a country or the security of a country is not a static concept. The days are gone when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty.”

 

There could be no dispute about these observations of the Supreme Court. But the Supreme Court did not anywhere suggest that security and defence required denial of information by the authorities. Just because the CBI is investigating some cases that have a bearing on national security, is it reasonable to deny information about the progress of its investigation in these cases or about the CBI itself? Indeed, it can be argued that because these cases pertain to national security, keeping information about the CBI and its investigation of these cases under wraps cannot further the cause of national security but actually hinders it.

 

The Attorney-General's answers to the other queries posed by the Law Ministry were equally unconvincing. To the question whether the exemption should be limited only to the part relating to intelligence, he replied that such limited exemption would make intelligence-gathering difficult, if not impossible. Information gathered with regard to the investigation of persons regarding what is spent on various activities such as foreign travel and seeking information with regard to finance, budget and training will tear open the veil of secrecy that is required in relation to intelligence and investigation and will make nonsense of the whole process of granting an exemption in the first place, the Attorney-General wrote in his opinion.

 

He concurred with another Supreme Court judge in a 1985 judgment: “The basic rule of intelligence work is that no person engaged in it should know more than what he needs to know.”

 

Describing the proposal of partial exemption of the CBI from the RTI Act as “truncated”, the Attorney-General was of the view that it was not at all justifiable or feasible, as intelligence-gathering by the CBI could not be divorced from national security concerns.

 

The Attorney-General, however, appears to have completely ignored an important proviso to Section 24(1) of the RTI Act, which provides exemption from its purview to intelligence and security organisations. This proviso says that the information pertaining to allegations of corruption and human rights violations shall not be excluded under this subsection and that such information should be provided after the approval of the Central Information Commission (CIC), within 45 days from the date of receipt of request.

 

As pointed out by Subhash Agrawal, even those already listed in the Second Schedule of the RTI Act are not responding to the RTI petitions relating to corruption and human rights violations. Citing a specific instance, he said the Enforcement Directorate, listed under the Second Schedule, had not complied with a full-bench CIC decision, delivered on September 28, 2010 (Appeal No. CIC/AT/A/2009/000353) as revealed by E.D. officers during a recent hearing before the CIC.

 

CIC stance

 

In a recent decision, Central Information Commissioner Shailesh Gandhi said there was no claim in CBI's mandate and functions that it was involved in intelligence gathering or was a security organisation. Even the additional functions performed by the CBI other than investigation of crimes did not include any function that would lend it the character of an intelligence or security organisation, he said. In view of the same, the CBI did not appear to fit the description of an “intelligence or security organisation” under Section 24(2) of the RTI Act, he said. Shailesh Gandhi explained in his decision that exempting the CBI was against the legislative intention behind the enactment of the RTI Act.

 

According to him, the 10 exemptions contained in Section 8(1) of the RTI Act are adequate and comprehensive to ensure that disclosure of information does not inter alia compromise national security or impede the process of investigation or apprehension or prosecution or endanger the life or physical safety of any individual.

 

“Given the stature and mandate of CBI, it does not seem plausible that Parliament could have inadvertently omitted to include CBI in the Second Schedule when the RTI Act was being enacted. In fact, it may be inferred that it was certainly not the intent of Parliament to include investigating agencies within the purview of Section 24(1) of the RTI Act. If it was intended that Parliament be given the power to include even investigating agencies in the Second Schedule subsequently, then Section 24(2) would have expressly provided for the same,” he stated.

 

 

The government cannot frustrate a law made by Parliament by resorting to such colourable administrative fiat, he warned.

 

The CIC has ruled that the June 9 notification exempting the CBI by amending the Second Schedule is not in consonance with the letter or spirit of Section 24 of the RTI Act, since it constricts the citizen's fundamental right in a manner not sanctioned by the law.

 

Critics like the former CIC, Wajahat Habibullah, and the NAC's Aruna Roy have deplored the exemption of the CBI from the RTI Act.

 

RTI activists seem to have a huge battle ahead to make the Act really meaningful and effective and resist the government's covert moves to weaken it.

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revribhav

Public Information Officer 13.7..2011

Central Bureu of Investigation

1,Tilak Marg,C-Scheme

Jaipur-302005

 

Sub:- Information under the Right to Information Act,2005 Dt. 5.7..2011*

With reference to your letter dated 8.7.2011 under reference CBI No. 363/RTI Act,05/58,2011/CBI/JAI *you have returned the RTI application on the plea of a cirucular issued by the DOPT dated 9th June 2011.

You may kindly note that the DOPT has clarified vide letter dated 5th July 2011* to the applicant whisle -blower that information pertaining to corruption and human rights violation shall not be excluded from Section 24 (1) of the RTI Act. Intelligence and security organizations are not excluded.

Kindly note that all the information desired pertains to systematic support to corruption and therefore it need be supplied.

*enclosed: as above. Yours Sincerely,

(ShriGopal ),Hindi Translator

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karira

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karira

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karira

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revribhav

Text of DOPT reply addressed to me under the RTI act:

 

No. 12/185/2011/IR

Government of India

Ministry of Personnel,Public Grievances and Pensions

Department of Personnel and Training

North Block, New Delhi

Dated 23rd June,2011/5th July 2011

To

Shri Gopal Soni

C231,Panchsheel Nagar,

Ajmer-305004

 

Subject: Information under the RTI Act,2005

 

Sir,

I am to refer to your application dated 13.06.2011 {received on 21.06.2011} and to furnish informaiton on Point No.6 is as under:

Point No.6 (a): Section 7(1) of the RTI Act,2005 mandates for disposal of request within a mandatory period of 30 days.

Point No. 6(b): Section 24 (1) of the RTI Act,2005 mandates that the Act shall not apply to intelligence & Security organisations. Provided that the information pertaining to allegations of corruption and human rights violations shall not be excluded under this section.

A copy of consolidated guide for all the stakholders is enclosed for ready reference.

2. The appeal in respect of the information provided can be made to the following Appellate Authority within 30 days from the date of receipt:

Smt. Anuradha S. Chagti

Deputy Secretary (RTI)

Department of Personnel & Training,

North Block,New Delhi

 

Yours faithfully,

(R. K. Girdhar) CPIO & Under Secretary Tel: 23092759

Copy to:

Section Officer (RTI Cell) 02876/RTIC/2011

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karira

As reported by IANS in newkerala.com on 04 August 2011:

http://www.newkerala.com/news/2011/worldnews-41961.html

 

CBI exempt from RTI for 'security' reasons

 

New Delhi, Aug 4 : The Central Bureau of Investigation (CBI) has exempted from the Right To Information (RTI) Act "in the interest of the security of the state", parliament was informed Thursday.

 

The RTI would cover the CBI only "in respect of ... allegations of corruption and human rights violations", Minister of State in the Prime Minister's Office V. Narayanasamy said in the Rajya Sabha.

 

He said the government got representations that there was no need to exempt the CBI from the act "as there are sufficient provisions not to disclose information likely to impede investigation or prosecution of offenders or which is related to sensitive security issues".

 

"It has also been stated that the CBI does not fulfil the criteria for exemption from the purview of the act as it is neither a security nor an intelligence organisation," he added.

 

Narayanasamy said the government, however, decided to categorize the CBI as "a security and intelligence organization" and said this was necessary "in the interest of the security of the state".

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karira

As reported by PTI in news.outlookindia.com on 09 August 2011:

http://news.outlookindia.com/item.aspx?730756

 

Centre Justifies Keeping CBI, NIA Out of RTI Act Ambit

 

 

Terming the right to information as "not an absolute one", the Centre today defended in the Delhi High Court its decision to keep key probe and intelligence agencies like CBI, NIA and NATGRID out of the transparency law ambit, asserting that it was "in larger public interest and in the interest of national security."

 

In a 16-page affidavit submitted to the bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna, the Ministry of Personnel justified its decision to keep various investigating and intelligence agencies out of the Right to Information Act purview, citing the need to strike a balance between "transparency and the security and well-being of the nation."

 

"It is in the larger public interest and in the interest of the national security that CBI, NIA and NATGRID have been included in the second schedule to the act," the Centre said in its affidavit submitted to the court in reply to the court notice over a public interest plea, challenging the exclusion of CBI etc from the RTI Act ambit.

 

"The right to information is not an absolute right. There is a need to ensure the security of the nation, which should not be jeopardised due to disclosure of information under the transparency law," said the Centre.

 

"It may be stated that the RTI Act requires a balance to be maintained between transparency and security and well- being of the nation. The three organisations have been included in the second schedule to the Act for maintaining such a balance," it added.

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Atul Patankar

As reported at ibnlive.in.com on Aug 23, 2011

 

KOCHI: The decision to exempt the Central Bureau of Investigation (CBI) and the National Investigation Agency (NIA) from the purview of the RTI Act was made considering the larger interest of national security, the Union Government submitted before the Kerala High Court on Monday.

Personnel and Training Department joint secretary K G Verma submitted the affidavit on a petition challenging the notification issued by the Centre on June 6 notifying the inclusion of CBI and NIA in the second schedule to RTI Act, 2005.

The Centre also submitted that the exemption under section-24 has been granted after receiving representations from the CBI and the NIA stating the difficulties being faced by them owing to the increased number of queries under the RTI Act.

Verma further stated that many of the cases handled by the agencies were sensitive in nature and intelligence plays a vital role in every aspect of its functioning.

The Naval war-room leak, Barak anti-missile defence system case, Bombay blast cases of 1993, Rajiv Gandhi assassination case and the Assam bomb blast case are some of the most sensitive cases pertaining to national security investigated by CBI.

“Disclosures under� the RTI may lead to targeting of officers which may ultimately affect the credibility of CBI and NIA, which would not be in national interest,” the affidavit states.

The functions of CBI and NIA involve intelligence collection similar to the Intelligence Bureau and other intelligence organisations.

The Centre further stated that the functions of CBI and NIA are always under intense scrutiny of the judiciary, which ensures greater amount of transparency.

The petitioner, RTI activist DB Binu, challenged the legality of the notification issued by the Centre in the official gazette of India published on June 6.

The CBI and NIA are organisations established by the Central Government for investigation and prosecution of crimes. These were not organisations established for intelligence and security purposes. So the decision of the government is illegal.

The Centre had abused the power by amending the second schedule of the RTI Act, the petitioner contended in� the court.

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karira

As reported by PTI in dnaindia.com on 24 August 2011:

http://www.dnaindia.com/india/report_hc-reserves-orders-on-exempting-cbi-from-rti-act_1579348

 

HC reserves orders on exempting CBI from RTI Act

 

Madras High Court Wednesday reserved its orders on a PIL challenging a Centre's notification exempting CBI from the purview of the Right to Information (RTI) Act.

 

A Division Bench comprising Chief Justice MY Eqbal and Justice TS Sivagnanam reserved orders after hearing arguments on the petition filed by RTI activist and advocate S Vijayalakashmi seeking to declare the June 9 last notification as ultra vires the Constitution.

 

The union government in its counter affidavit asserted the right to information was not an absolute right and pointed out that there was a need to balance the right of a citizen against the need to ensure the security of the nation, which should not be jeopardized due to disclosure of information with security implications.

 

'The exemption granted to CBI under section 24 is not a blanket exemption inasmuch as the exemption is subject to the provisos of section 24 of the RTI Act,' KG Verma, Joint Secretary in the Union Department of Personnel and Training, attached to the Ministry of Personnel, Public Grievances and Pensions, submitted.

 

Hence, allegations pertaining to corruption and human rights violations were still within the purview of the RTI Act, subject to other provisions of the act, he said.

 

The officer submitted cases handled by the CBI were very sensitive and inputs based on intelligence collected which could relate to the security of the state.

 

'In many sensitive cases the collection of intelligence and the process of investigation and trial are intertwined and cannot be separated,' the affidavit said.

 

Claiming the petitioner's contentions were false and misleading, the centre prayed for dismissal of the petition.

 

CBI, in a separate counter affidavit, claimed the right to information with respect to other fundamental rights under Article 19(1) of the Constitution 'is not an unfettered right and is subject to reasonable restrictions.'

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dr.s.malhotra

Madras HC dismisses petition on exemption of CBI from RTI Act

Chennai, Sep 9 (PTI) in Deccan Herald

can be seen here : http://www.deccanherald.com/content/189721/madras-hc-dismisses-petition-exemption.html

The Madras High Court today dismissed a petition challenging recent Government move to exempt the CBI from the ambit of transparency law Right to Information Act.

"Chief Justice of the High Court in his judgement has pronounced that the notification issued by the Centre exempting CBI from RTI U/s 24 is valid on the grounds of national security and intelligence. The Court saw no justification in interfering in the matter," a CBI spokesperson said in a statement.

 

Government on June 9 had brought the CBI, NIA and Natgrid under second schedule of section 24 of the RTI Act which exempts security and intelligence organisations from disclosing any information under the transparency except in cases where allegations of human rights violation or sexual are made.

 

The notification was issued after a committee of secretaries (CoS) took the decision in May. The panel, headed by the Cabinet Secretary on May 14, had given the nod to the CBI's request that it should be exempt from providing information under the RTI Act.

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Atul Patankar

As reported at timesofindia.indiatimes.com on Sep 10, 2011

 

Exclusion of CBI from RTI ambit upheld

 

CHENNAI: Ruling that the Central Bureau of Investigation (CBI) is a security and intelligence organization, the Madras high court has upheld the Union government's decision to exclude the agency from the ambit of the Right to Information (RTI) Act.

 

The central notification cocooning the CBI from the purview of the RTI Act was issued on June 9, 2011, prompting writ petitions in several high courts. On Friday, the Madras high court became the first in the country to decide the issue on merit.

 

Dismissing a public interest writ petition questioning the validity of the "blanket and wholesale exemption" given to the CBI, the first bench comprising Chief Justice M Y Eqbal and Justice T S Sivagnanam said: "In our view, queries which would hamper or jeopardize the working of any intelligence and security agency should not be permitted and undoubtedly this was not the purport of the RTI Act. Any investigation by such an agency as the CBI handling sensitive and sensational cases involving internal security of the country and its financial stability, if allowed to be disclosed would be counter-productive and it will adversely affect the efficiency of the functioning of the organization itself."

 

Concurring with the submissions of additional solicitors-general of India M Ravindran and Gouravah Banerji, and senior central government standing counsel P Chandrasekaran and CBI special public prosecutor N Chandrasekaran, the first bench pointed out that no blanket or wholesale exemption had been extended to the central agency.

 

The judges said that as per the Section 24 of the Act, the CBI is still bound to provide information relating to corruption allegations and human rights violations.

 

"Therefore, the safeguard is in-built in the statute so as to ensure that the agencies are not totally excluded from the purview of the RTI Act," they said. The PIL, filed by advocate S Vijayalakshmi, contended that the RTI Act provided exemption only to intelligence and security agencies, whereas the CBI is only an investigating agency unworthy of blanket exemption.

 

Her counsel, Manikandan Vathan Chettiar, had submitted that such exemptions would create chaos.

 

Rejecting the submissions, the judges noted that the CBI was dealing with many cases of larger public interest and disclosure of information would have a great impact not only within the country but also abroad. "In the light of the various sensitive cases being handled by the CBI, it cannot be denied that they have a direct bearing not only on the national security, but also the financial security of the country." As the CBI needs to adopt an intelligence-led approach, it is the intelligence agency of the government of India handling issues of national security, the bench concluded.

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